The compatibility of discretionary power with the principle of legality
Keywords:
(Discretionary power, principle of legality, judicial review, administrative courts, abuse of power, principle of proportionality, restricted authority, rule of law).Abstract
This research examines the extent to which administrative discretionary power aligns with the principle of legality. While administrative authorities are granted a margin of freedom in decision-making based on prevailing circumstances, the absence of well-defined legal constraints may lead to potential abuses. The study explores the development of the relationship between discretionary power and legality through the lens of legislation and administrative jurisprudence in France, Egypt, and Iraq, with a particular focus on the legal safeguards that ensure a balance between administrative authority, public interest, and individual rights. Additionally, the research highlights the role of administrative courts in regulating the exercise of discretionary power through formal and substantive review, as well as the principle of proportionality
References
Sources and References
First/ Books:
1. Al-Bourini, Omar, Administrative Legitimacy as a Determinant of the Administration's Exercise of Discretionary Powers: A Comparative Study.
2. Al-Taniji, Muhammad, The New Judicial Oversight of the Administrative Discretionary Power in Public Property Expropriation Decisions Through the Theory of Balancing Benefits and Harms (A Comparative Applied Study).
3. Bassiouni, Abdullah, The Lebanese Administrative Judiciary.
4. Bouzian, Alian, (2009), The State of Legitimacy: Between Theory and Practice, Dar Al-Jami'a Al-Jadida.
5. Gamal El-Din, Sami, The Mediator in a Suit to Cancel Administrative Decisions.
6. Hafez, Mahmoud, (1993), Administrative Judiciary in Egyptian and Comparative Law, Dar Al-Nahda Al-Arabiya, Cairo.
7. Hassan, Muhammad, (1974), Discretionary Power in Administrative Decisions, Cairo.
8. Diab, Muhammad, Deviation of Authority in Issuing Administrative Decisions (An Analytical Study in the Saudi and Egyptian Systems).
9. Adnan, Omar, (2004), Palestinian Administrative Judiciary: The Principle of Legality, 1st ed., Alexandria.
10. Adou Abdel Qader, (2012), Administrative Disputes, Dar Houma.
11. Omar, Ismail, (1984), The Discretionary Power of the Judge in Civil and Commercial Matters, Maaref Establishment, 1st ed.
12. Ta'ima, Al-Jarf, The Principle of Legality and Controls for Public Administration's Subjection to the Law.
Second/ Research:
1. Abdul Qader, Nabi, (2015), The Limits of Similarity and Difference between Discretionary Power and Restrictive Administrative Power, Political and Legal Notebooks, Issue 13.
2. Marawmiya, Sabrina, (2023), The Defect of Deviation in the Use of Power: Between the Difficulty of Detecting It and the Means of Proving It, Maaref Journal, Volume 18, Issue 1.
Third/ Theses and Dissertations:
1. Boudiaf, Al-Khair, (2014-2015), The Discretionary Power of the Administration and Its Impact on the Principle of Legitimacy, Master's Thesis, Mohamed Boudiaf University.
2. Zgheir, Muhand, (2014), The Discretionary Power of the Administration in the Field of Administrative Control in Normal Circumstances, PhD Thesis, College of Law, Al-Nahrain University.
3. Zankaneh, Salam, (2008), Judicial Oversight of the Legitimacy of Administrative Decisions: A Comparative Study, Master's Thesis, Arab Open Academy in Denmark, Faculty of Law and Politics.
4. Sa'idat, Khawla; and Maimouni, Rayyan, Judicial Oversight of Administrative Discretionary Power, Master's Thesis in Law.
Fourth/ Court Decisions:
1. Decision No. 129 of 2011 of the Supreme Court of Justice, issued on December 29, 2011, published on the website of the Jordan Bar Association, available at: https://www.jba.org.jo/Default/Ar (accessed March 1, 2025).
Fifth/ Foreign references (in French):
1. Beauregard, Davide, Detournement de pouvoir et de procédure, EP number 42289, 19th edition, 2013, No. 3, available at: www.legifrance.gouv.fr (accessed March 7, 2025)
